DEPARTMENT OF VETERANS AFFAIRS GULF COAST VETERANS AFFAIRS HEALTH CARE SYSTEM BILOXI, MISSISSIPPI and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1045, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

DEPARTMENT OF VETERANS
AFFAIRS

GULF COAST VETERANS
AFFAIRS

HEALTH CARE SYSTEM

BILOXI, MISSISSIPPI

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1045,
AFL-CIO

Charging
Party

Case No. AT-CA-04-0148

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
submitted to the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
undersigned herein serves his Decision, a copy of which is attached
hereto, on all parties to the proceeding on this date and this case
is hereby transferred to the Federal Labor Relations Authority
pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing
of exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.40-

2423.41, 2429.12, 2429.21-2429.22,
2429.24-2429.25, and 2429.27.

Any such exceptions must be filed
on or before

JUNE 21, 2004, and addressed to:

Office of Case Control

Federal Labor Relations
Authority

1400 K Street, NW, Suite
201

Washington, DC 20005

SUSAN E. JELEN

Administrative Law Judge

Dated: May 19, 2004

Washington, DC

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

MEMORANDUM DATE: May 19,
2004

TO: The Federal Labor Relations
Authority

FROM: SUSAN E. JELEN

Administrative Law Judge

SUBJECT: DEPARTMENT OF VETERANS
AFFAIRS

GULF COAST VETERANS
AFFAIRS

HEALTH CARE SYSTEM

BILOXI, MISSISSIPPI

Respondent

and Case No.
AT-CA-04-0148

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1045,
AFL-CIO

Charging Party

Pursuant to section 2423.27(c) of
the Final Rules and Regulations, 5 C.F.R. § 2423.27(c), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed is a Motion for Summary Judgment and
other supporting documents filed by the parties.

Enclosures

OALJ 04-28

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.

DEPARTMENT OF VETERANS
AFFAIRS

GULF COAST VETERANS
AFFAIRS

HEALTH CARE SYSTEM

BILOXI, MISSISSIPPI

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1045,
AFL-CIO

Charging
Party

Case No. AT-CA-04-0148

Brent S. Hudspeth

For the General
Counsel

Before: SUSAN E. JELEN

Administrative Law
Judge

DECISION ON MOTION FOR SUMMARY
JUDGMENT

On March 31, 2004, the Regional
Director of the Atlanta Region of the Federal Labor Relations
Authority issued a Complaint and Notice of Hearing, alleging that
the Department of Veterans Affairs, Gulf Coast Veterans Affairs
Health Care System, Biloxi, Mississippi (the Respondent) violated
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by unilaterally requiring
bargaining unit employees in Medical Care Cost Recovery (MCCR) who
were on compressed work schedules to sign in and out
electronically. This action was taken without first notifying the
American Federation of Government Employees, Local 1045, AFL-CIO
(Union or Local 1045), an agent of the exclusive representative of
the employees at Respondent, and providing it the opportunity to
negotiate to the extent required by the Statute. The complaint was
served on Respondent by certified mail and specified that, in
accordance with the Authority's Rules and Regulations, the
Respondent must file an Answer to the complaint no later than April
26, 2004. The complaint further advised that a failure to file an
answer shall constitute an admission of the allegations of the
complaint. A hearing was scheduled for May 13, 2004.

The Respondent did not file an
answer, either in person or by mail, within the required period or
at any time thereafter.

On May 3, 2004, Counsel for the
General Counsel filed a Motion for Summary Judgment, asserting that
by its failure to answer the complaint, the Respondent has admitted
all of the allegations therein. Since no facts are in dispute, the
General Counsel submits that the record demonstrates that the
Respondent violated section 7116(a)(1) and (5) of the
Statute.

The Respondent has failed to file
any response to the General Counsel's Motion for Summary Judgment
within the time period provided by Regulations. See 5 C.F.R. §
2423.27(b).

On May 3, 2004, Counsel for the
General Counsel filed its Motion To Postpone Hearing Indefinitely.
The scheduled hearing in this matter was postponed indefinitely by
Order dated May 5, 2004.

(b) Answer. Within 20 days after
the date of service of the complaint, . . . the Respondent shall
file and serve, . . . an answer with the Office of Administrative
Law Judges. The answer shall admit, deny, or explain each
allegation of the complaint. . . . Absent a showing of good cause
to the contrary, failure to file an answer or respond to any
allegation shall constitute an admission.

The Rules and Regulations also
explain how to calculate filing deadlines and how to request
extensions of time for filing the required documents.
See, e.g.,
sections 2429.21 through 2429.23.

In this case the Respondent has not
filed an answer as required by the Regulations. In accordance with
section 2423.20(b) of the Rules and Regulations, this failure
constitutes an admission of each of the allegations of the
complaint. Department of Veterans Affairs
Medical Center, Asheville, North Carolina,51 FLRA 1572, 1594 (1996). Furthermore, the Respondent has not
filed any response to the Motion for Summary Judgment.
Accordingly, there are no disputed factual or legal issues in this
case and it is appropriate to resolve this case by summary
judgment. Based on the existing record, I make the following
findings of fact, conclusions of law and
recommendations.

Findings of Fact

1. The Respondent is an agency as
defined by 5 U.S.C. § 7103(a)(3).

2. The American Federation of
Government Employees, AFL-CIO (AFGE) is the exclusive
representative of a bargaining unit at the Department of Veterans
Affairs, and Local 1045 is an agent of AFGE for purposes of
representing employees at the Respondent's facility in Biloxi,
Mississippi.

3. During the time period at issue
in the complaint, Rebecca L. Gustin occupied the position of MCCR
Coordinator at Respondent's Biloxi, Mississippi facility. Gustin
was a supervisor or management official under 5 U.S.C. §
7103(a)(10) and (11) and was acting on behalf of the
Respondent.

4. On or about September 19, 2003,
the Respondent, through Gustin, notified employees in MCCR who were
on compressed work schedules that they would be required to sign in
and out electronically.

5. The Respondent implemented the
change described in paragraph 4 above without negotiating with
Local 1045 to the extent required by the Statute.

Discussion and
Conclusions

Section 7116(a)(5) of the Statute
provides that it shall be an unfair labor practice for an agency to
refuse to negotiate in good faith with a labor organization as
required by the Statute. This duty to negotiate in good faith
requires that prior to implementing a change in conditions of
employment of bargaining unit employees, an agency is required to
provide the exclusive representative with notice and an opportunity
to bargain over those aspects of the change that are within the
duty to bargain. United States Department
of the Air Force, Luke Air Force Base, Arizona,57 FLRA 730 (2002). Respondent has admitted by its failure to
file an answer that the change in working conditions in this case
is one that triggers the agency's duty to negotiate in good faith
with the exclusive representative. Therefore, as admitted by its
failure to answer the complaint, Respondent violated section
7116(a)(1) and (5) of the Statute when it failed to provide notice
to the Union and bargain with the Union over the above changes in
conditions of employment.

Remedy

Counsel for the General Counsel
proposed a recommended remedy requiring that the Respondent be
ordered to restore thestatus quo
anteby terminating the requirement that
MCCR bargaining unit employees working compressed work schedules
sign in and out electronically. Astatus
quo anteremedy is not always appropriate
when an agency has unilaterally implemented a change in conditions
of employment, but by failing to respond to the Motion for Summary
Judgment and by failing to offer any evidence demonstrating the
inappro-priateness of such a remedy, the Respondent has waived any
objection to the remedy proposed by the General Counsel.

Accordingly, I recommend that the
Authority grant the General Counsel's Motion for Summary Judgment
and issue the following Order:

ORDER

Pursuant to section 2423.41(c) of
the Authority's Rules and Regulations and section 7118 of the
Federal Service Labor-Management Relations Statute, it is hereby
ordered that the Department of Veterans Affairs, Gulf Coast
Veterans Affairs Health Care System, Biloxi, Mississippi,
shall:

1. Cease and desist
from:

(a) Unilaterally changing
working conditions of Medical Care Cost Recovery (MCCR) bargaining
unit employees by requiring those who work a compressed work
schedule to sign in and out electronically without first notifying
the American Federation of Government Employees, Local 1045,
AFL-CIO (Union) and providing it the opportunity to bargain over
the decision to change such conditions of employment.

(b) In any like or related
manner, interfering with, restraining or coercing its employees in
the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

2. Take the following affirmative
action in order to effectuate the purposes and policies of the
Federal Service Labor-Management Relations Statute:

(a) Terminate the requirement
that MCCR bargaining unit employees working compressed work
schedules sign in and out electronically.

(b) Give notice to, and upon
request, negotiate with the Union over the decision to implement
the requirement that MCCR bargaining unit employees working
compressed work schedules sign in and out
electronically.

(c) Post at its facilities at
the Department of Veterans Affairs, Gulf Coast Veterans Affairs
Health Care System, Biloxi, Mississippi, where bargaining unit
employees represented by the American Federation of Government
Employees, Local 1045, AFL-CIO, are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Director, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that such
Notices are not altered, defaced, or covered by any other
material.

(d) Pursuant to section
2423.41(e) of the Authority's Rules and Regulations, notify the
Regional Director, Atlanta Region, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply.

Issued, Washington, DC, May 19,
2004.

_______________________________

SUSAN E. JELEN

Administrative Law Judge

NOTICE
TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS
AUTHORITY

The Federal Labor Relations
Authority has found that the Department of Veterans Affairs, Gulf
Coast Veterans Affairs Health Care System, Biloxi, Mississippi,
violated the Federal Service Labor-Management Relations Statute,
and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES
THAT:

WE WILL NOTunilaterally change working conditions of Medical Care Cost
Recovery (MCCR) bargaining unit employees represented by the
American Federation of Government Employees, Local 1045, AFL-CIO
(Union) by requiring bargaining unit employees working a compressed
work schedule to sign in and out electronically without first
notifying the Union and providing it the opportunity to bargain
over the decision to change such conditions of
employment.

WE WILL NOTrefuse to bargain with the Union over changes in working
condition of bargaining unit employees.

WE WILL NOTin any like or related manner, interfere with, restrain, or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.

WE WILLterminate the requirement that MCCR bargaining unit employees
who work a compressed work schedule sign in and out
electronically.

_______________________________

(Activity)

Date:
By:

(Signature) (Title)

This Notice must remain posted for
60 consecutive days from the date of posting and must not be
altered, defaced, or covered by any other material.

If employees have any questions
concerning this Notice or compliance with its provisions, they may
communicate directly with the Regional Director, Atlanta Regional
Office, Federal Labor Relations Authority, whose address